One salient characteristic of State Constitutional Commentary has been the wide variety of topics dealing with state high courts, state adjudication, and state public law in each issue. This one is true to that tradition.
Advisory opinions, same-sex marriage, the relevance of a state's historical treatment of gays and lesbians, the death penalty, state constitutional rights to subsistence and publicly-funded education, judicial selection and evaluation, ideological voting patterns in criminal cases, amicus briefs, oversight of a state pension fund, and taxing nonresident telecommuters. Quite a diverse selection.
The issue begins with the transcripts of this past year's symposium, a now-annual State Constitutional Commentary event held in honor of Lawrence H. Cooke--New York's former Chief Judge and Albany Law School's illustrious alum. The 2009 Chief Judge Cooke Symposium, entitled "Tough Call," brought four of the nation's top state jurists together. They were asked to discuss their most difficult decisions. Maureen McKenna Goldberg, an Associate Justice from the Rhode Island Supreme Court, pointed to the role of that state's Supreme Court in providing advisory opinions. She gave specific examples, such as one unpopular decision that reaffirmed the ultimate authority of the state's General Assembly as a lingering attribute of Rhode Island's history of a parliamentary form of government. John Greaney, recently retired from the Massachusetts Supreme Judicial Court, talked about his court's 2003 Goodridge decision which extended the right to marry to same-sex couples under the state's constitution. Greaney insisted that the decision actually was not one of the most difficult to make; the result, in his view, was clearly dictated by the constitutional guarantee of equal protection.
Justice Flemming Norcott, who sits on Connecticut's Supreme Court, spoke about a pair of state constitutional decisions--one arguing for a right of indigent persons to subsistence and the other for the equal opportunity to public education. He contrasted the former, which has no relevant guarantee expressed in the state's constitution, to the latter, which does. Judge Robert Smith, a member of New York's Court of Appeals, the state's highest court, told of his decision in the second of two death penalty cases. In the first case, he had dissented against his court's decision to invalidate an essential provision of the state's death penalty statute. In the second, the tough call, he provided the swing vote to reaffirm the court's previous decision and, thus, to invalidate the death sentence imposed at the trial court. Smith chose stare decisis over his continuing belief that the decision in the first case was mistaken.
Following the symposium are two Perspectives on judicial selection. Rebecca Love Kourlis and Jordan Singer, both of the University of Denver's Institute for the Advancement of the American Legal System, propose judicial perform evaluations for New York. Whether the judges are elected or appointed, a performance evaluation program would provide continuous, comprehensive assessments that would help decision makers in judicial selection and screening. Norman Greene, a partner at Schoeman Updike & Kaufman and a leading expert and advocate for judicial improvement, offers suggestions for the various levels of New York's judiciary. While the appointment process for the state's highest court could be improved, the selection for the state's intermediate appeals court and its various trial courts--by election and appointment--are far more pressing concerns.
Several student contributions, examining some fascinating and important matters, round out the issue. In his High Court Study, Kevin Blackwell, an Executive Editor for Lead Articles this past year, takes a look at the voting of the individual justices of the Massachusetts Supreme Judicial Court in criminal cases. He does so in the context of gubernatorial appointments and changes in the court's composition. …